United States: Litigating Cohabitation Under NJ's Amended Alimony Law

After years of legislative debate, alimony reform arrived in New Jersey on Sept. 10, 2014, when Gov. Chris Christie signed into law a bill that went into immediate effect and substantially amended various provisions of New Jersey's alimony law, N.J.S.A. 2A:34-23.

While much of the attention has focused on changes to the durational component of alimony, other substantial changes to the law were made regarding the ability to modify an existing or future alimony obligation in the event of the payor's retirement, the payor's down income and the payee's cohabitation, the last of which is the focus of this article.

As a threshold matter, while the new law applies only to ongoing or future divorces when setting an initial alimony award, it also applies to previously settled or adjudicated matters when there exists a request to modify alimony. An interesting question arises, however, regarding what law applies when an existing settlement agreement provides that the issue of cohabitation will be decided pursuant to the seminal cases (often specifically named in the agreement itself) that existed pre-amendment. Quite frankly, this language, or some variation thereof, is very commonly found in agreements. The language in those situations was bargained for as part of an amicable resolution because that was all we as attorneys knew of at the time. Now that same language, if not couched appropriately, could potentially preclude application of the amended statute should the issue of cohabitation arise. Thus, even with the amended law taking its place, the prior law may still apply in many cases where a prior agreement exists addressing the issue.

The first step to determine whether support should be modified based on cohabitation is to understand the meaning of "cohabitation." In Konzelman v. Konzelman, 158 N.J. 185, 202 (1999), and Gayet v. Gayet, 92 N.J. 149, 155 (1983), the Supreme Court described cohabitation as follows:

  • An "intimate," "close and enduring" relationship that requires "more than a common residence" or mere sexual liaison. The relationship "bears the generic character of a family unit as a relatively permanent household," is "serious and lasting," and reflects the "stability, permanency and mutual interdependence" of a single household.
  • It involves conduct whereby "the couple has undertaken duties and privileges that are commonly associated with marriage."
  • Indicia may include, but are not limited to, long-term intimate or romantic involvement; living together; intertwined finances such as joint bank accounts, shared living expenses and household chores; and recognition of the relationship in the couple's social and family circle.

The amended statute's definition of cohabitation is largely similar, although not as detailed as that set forth above, providing:

Cohabitation involves a mutually supportive, intimate personal relationship in which a couple has undertaken duties and privileges that are commonly associated with marriage or civil union but does not necessarily maintain a single common household.

When assessing whether cohabitation is occurring, the court shall consider the following:

  1. Intertwined finances, such as joint bank accounts and other joint holdings or liabilities;
  2. Sharing or joint responsibility for living expenses;
  3. Recognition of the relationship in the couple's social and family circle;
  4. Living together, the frequency of contact, the duration of the relationship, and other indicia of a mutually supportive intimate personal relationship;
  5. Sharing household chores;
  6. Whether the recipient of alimony has received an enforceable promise of support from another person within the meaning of subsection h. of R.S. 25:1-5;
  7. All other relevant evidence.

Importantly, the statute requires a trial judge to consider the length of the relationship and definitively addresses a prior inconsistency in the law by declaring that cohabitation may exist even where the couple "does not live together on a full-time basis." While I have yet to see any decisions adjudicating a cohabitation matter post-amendment, this clarification should make it easier for the payor spouse to prove cohabitation. This approach also acts in a manner consistent with the amended statute's more payor-friendly theme.

When filing an application alleging cohabitation, it is imperative for the payor spouse to illuminate the family judge with as much relevant detail as possible regarding the dependent spouse's relationship to support the above factor-based considerations. Retaining a private investigator or forensics expert for certain limited, lawful purposes can oftentimes prove useful for accumulating information that will help buttress the payor's position.

Under pre-amendment law, the payor spouse's initial cohabitation showing creates a rebuttable presumption that shifts the burden to the dependent spouse "to show that there is no actual economic benefit to the spouse or the cohabitant." Ozolins v. Ozolins, 308 N.J. Super. 243, 245 (App. Div. 1998). The trial court then schedules a final plenary hearing, preceded by a discovery period allowing for the exchange of documentation and information to shed light on the situation.

The Gayet court established the following economic-based standard for modifying support in the event of cohabitation:

  • Whether the third-party cohabitant contributes to the dependent spouse's support, or
  • Whether the third-party cohabitant resides in the dependent spouse's home without contributing anything toward the household expenses.

Gayet, 92 N.J. at 154. ("The extent of actual economic dependency, not one's conduct as a cohabitant, must determine the duration of support as well as its amount.")

Under the amended law, however, does the economic benefit test still exist in any way, shape or form? While an affirmative answer would, in large part, represent a sea change in the law, it would certainly be consistent with the amendment's more payor-friendly approach by rendering it easier to prove cohabitation. It would also eliminate the need for what can often be a complex and costly analysis to determine the extent of the economic benefit received by the dependent spouse from the cohabitation.

To that end, a related question is whether the amendment allows for an alimony modification short of an outright termination. Gayet and its progeny are clear that modification in the event of cohabitation may mean something other than an eliminated payment obligation. See Reese v. Weis, 430 N.J. Super. 552, 572-73 (2013) ("a supporting spouse's obligation may be modified or terminated when a dependent spouse economically benefits from cohabiting.") (emphasis added); Melletz v. Melletz, 271 N.J. Super. 359, 363 (App. Div. 1994) ("the test for determining whether cohabitation should reducean alimony award has always been based on a theory of economic contribution") (emphasis added). In fact, the payee spouse's demonstration that he or she remains financially dependent, to some degree, on the alimony payment confirms that alimony may be modified to accommodate that reduced need, rather than terminated entirely.

Without an economic benefit test, however, a modification short of suspension or termination is rendered unnecessary. The new law provides that "Alimony may be suspended or terminated if the payee cohabits with another person." N.J.S.A. 2A:34-23n (emphasis added). The word modification is nowhere to be found in this portion of the amended statute. By contrast, the amendments pertaining to a change in circumstances based on a payor's retirement states that "Alimony may be modified or terminated upon the prospective or actual retirement of the obligor." N.J.S.A. 2A:34-23j. Similarly, the amendments addressing a change in circumstances based on a payor's down income provides that alimony is subject to "modification," and that a temporary remedy may include a support reduction. N.J.S.A. 2A:34-23k-m.

Also unknown are what facts and circumstances would merit a suspension, as compared to a termination. Would a suspension be appropriate only while a future plenary hearing is pending? Would the alimony obligation resume if merely a suspension is ordered and the cohabitation ends at some later date?

Ultimately, the cohabitation analysis remains and will always be about the facts, as is the case with so many areas of matrimonial practice. Trial courts will continue to examine the over-arching nature and character of the cohabitation relationship at issue to determine the most fair and equitable result. As with any statute, trial judges will be called upon to interpret and develop the statute's meaning over time, allowing the law to continue its evolution.

Originally published in the February 19 issue of The New Jersey Law Journal.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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